United States v. Edmonds ( 2022 )

Case: 19-11007 Document: 00516376192 Page: 1 Date Filed: 06/29/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 29, 2022
No. 19-11007 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Mark Julian Edmonds,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CV-1835
Before Jones, Southwick, and Oldham, Circuit Judges.
Per Curiam:*
A jury convicted Petitioner Mark Julian Edmonds in 2000 for violating
18 U.S.C. §§ 922(g) and 924(e) by being a felon in receipt of ammunition.
The district court sentenced him to 327 months of imprisonment pursuant to
the Armed Career Criminal Act (“ACCA”). 1 Edmonds was deemed a career
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
1
Under the ACCA, a person convicted of violating § 922(g) who has three previous
convictions for a violent felony or a serious drug offense is subject to a minimum sentence
Case: 19-11007 Document: 00516376192 Page: 2 Date Filed: 06/29/2022
No. 19-11007
criminal because, in 1985, he entered nine guilty pleas to burglary in the
second degree, a Class C felony, in violation of § 140.25 of the Penal Law of
the State of New York. 2 This court affirmed his conviction and sentence and
the Supreme Court denied his writ of certiorari. See Edmonds v. United States,
534 U.S. 870, 122 S. Ct. 160 (2001); United States v. Edmonds, 2001 WL
360663 (5th Cir. 2001) (per curiam).
Edmonds pursued post-conviction habeas relief in federal court based
on alleged Speedy Trial Act violations and moved for relief from judgment
under Federal Rule of Civil Procedure 60(b) following the denial of his habeas
petition. United States v. Edmonds, 511 F. App’x 355 (5th Cir. 2013) (per
curiam). We denied him a certificate of appealability (“COA”). Id.In 2015, the Supreme Court held that the ACCA’s residual clause was
unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 593-606,
135 S. Ct. 2551, 2555-63 (2015). Edmonds then sought permission to file a
successive habeas petition based on the Johnson decision. In re Edmonds, No.
16-10673, 2016 U.S. App. LEXIS 16236, *1 (5th Cir. June 27, 2016) (per
curiam). We granted Edmonds “tentative” authorization to do so in 2016
while emphasizing that “the district court must dismiss the § 2255 motion
of 15 years of imprisonment. § 924(e)(1). The ACCA defines a violent felony as any crime
punishable by a term of imprisonment exceeding one year that “(i) has as an element the
use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B). The portion of subsection (ii) after the enumeration of offenses is known
as the residual clause. Johnson v. United States, 576 U.S. 591, 594, 135 S. Ct. 2551, 2556
(2015).
2
The only pertinent remark during the court’s sentencing colloquy was that
“those [burglaries] were offenses that qualified the defendant as an armed career
criminal.” Critically, the court did not expressly state whether it relied on the ACCA’s
residual or enumerated clauses in rendering the sentence.
2
Case: 19-11007 Document: 00516376192 Page: 3 Date Filed: 06/29/2022
No. 19-11007
without reaching the merits if it determines that Edmonds has failed to make
the showing required by § 2255(h)(2).” Id. at *2. Edmonds then filed his
petition and argued that his prior New York convictions for second degree
burglary no longer qualified as “violent felonies” under the ACCA’s residual
clause because they did not have the use of force as an element. Edmonds
also argued that those convictions fell outside of the generic definition of
burglary and thus did not constitute enumerated offenses under the ACCA.
The district court dismissed the successive habeas petition for lack of
jurisdiction pursuant to 28 U.S.C. § 2244(b). In doing so, the court
determined that New York second degree burglary met the generic definition
of burglary. The court alternatively concluded that it lacked jurisdiction over
the successive petition because Edmonds did not demonstrate by a
preponderance of the evidence that the sentencing court relied on the
ACCA’s residual clause. 3 Edmonds timely appealed, and the district court
denied him a COA.
We also initially denied Edmonds’ request for a COA, but
reconsidered and ultimately granted him a COA with respect to the following
issues:
(1) What burden, if any, must a movant satisfy in district court
to maintain a successive motion under 28 U.S.C. § 2255 and
Johnson v. United States, 135 S. Ct. 2551 (2015) following the
Court of Appeals’ preliminary authorization, as compared to
3
The district court emphasized that federal courts viewed New York attempted
burglary in the third degree, a less serious offense than second degree burglary, to be a
violent felony under the ACCA at the time of sentencing. And cases to the contrary on
which Edmonds relied were decided more than 10 years after he was sentenced and were
therefore irrelevant in determining whether the sentencing court had relied on the residual
clause.
3
Case: 19-11007 Document: 00516376192 Page: 4 Date Filed: 06/29/2022
No. 19-11007
the burden to show entitlement to relief under § 2255 and
Johnson?
(2) Is New York burglary in the second degree a “generic”
burglary?
(3) Is burglary of a vehicle in which someone lives a generic
burglary?
(4) Is Mr. Edmonds entitled to post-conviction relief under
Johnson?
The government then moved to dismiss the appeal for lack of jurisdiction.
“There are two requirements, or ‘gates,’ which a prisoner making a
second or successive habeas motion must pass to have it heard on the
merits.” United States v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018) (citation
omitted), cert. denied, 139 S. Ct. 1328 (2019). First, “we must grant the
prisoner permission to file a second or successive motion[.]” Id. (citing
28 U.S.C. §§ 2244(b)(2), (3)(A), (3)(C), 2255(h)). We did so in 2016. In re
Edmonds, 2016 U.S. App. LEXIS 16236 at *2. Second, “the prisoner must
actually prove at the district court level that the relief he seeks relies either
on a new, retroactive rule of constitutional law or on new evidence.” Wiese,
896 F.3d at 723 (citing § 2244(b)(2), (4)). We have now reached that
juncture.
“The dispositive question for jurisdictional purposes here is whether
the sentencing court relied on the residual clause in making its sentencing
determination—if it did, then Johnson creates a jurisdictional predicate for
the district court, and for our court on appeal, to reach the merits of
[Edmonds’s] motion.” Id. at 724. In making that determination, “we must
look to the law at the time of sentencing to determine whether a sentence was
imposed under the enumerated offenses clause or the residual clause.” Id.
To make the requisite showing, Edmonds raises the three arguments
addressed below. Each is, however, unavailing.
4
Case: 19-11007 Document: 00516376192 Page: 5 Date Filed: 06/29/2022
No. 19-11007
First, he argues that “the district court has no ‘gatekeeping’ role to
play under 28 U.S.C. § 2244(b)(4) after a federal prisoner secures
authorization to file a successive motion under 28 U.S.C. § 2255(h).” But
he “acknowledges that this position is currently foreclosed by Reyes-Requena
v. United States, 243 F.3d 893, 899 (5th Cir. 2001).” As explained above, this
court continues to hold that “[t]here are two requirements, or ‘gates,’ which
a prisoner making a second or successive habeas motion must pass to have it
heard on the merits.” Wiese, 896 F.3d at 723 (citing Reyes-Requena, 243 F.3d
at 899). The first argument therefore fails.
Second, Edmonds argues that Johnson offers post-conviction relief
under § 2255(h)(2) for prisoners deemed armed career criminals because of
non-generic burglary convictions. We need not address this argument
because, as explained below, the New York burglary convictions at issue are
generic and constitute violent felonies under the ACCA’s enumerated
clause.
Third, Edmonds contends that New York second-degree burglary is
non-generic and thus a non-violent felony under the ACCA. But the Second
Circuit’s decision in Savoca v. United States disagreed, and we find that
decision dispositive. 21 F.4th 225 (2d Cir. 2021). The sentencing court there
determined that the petitioner’s three 1991 New York residential burglary
convictions constituted violent felonies under the ACCA’s enumerated
clause. Id. at 228, 233-34. The petitioner sought to vacate his sentence by
arguing that it was partially based on the residual clause that Johnson held to
be unconstitutionally vague. Id. at 228. The Second Circuit affirmed the
district court’s denial of the petitioner’s successive habeas petition by
reasoning (in part) that the “sentencing court would not have committed
legal error by using the information in [the petitioner’s] PSR . . . to determine
that each such burglary had in fact been a ‘violent felony’ for purposes of the
ACCA’s enumerated clause.” Id. at 237 n.8. Thus, when Savoca was
5
Case: 19-11007 Document: 00516376192 Page: 6 Date Filed: 06/29/2022
No. 19-11007
sentenced under ACCA in 2004, “nothing in the legal
background . . . precluded, or even greatly complicated, the classification of
[the petitioner’s] 1991 felony burglaries as ‘violent felonies’ under ACCA’s
enumerated clause.” Id. Edmonds, like the petitioner in Savoca, has not
demonstrated that his sentencing court erred, in 2000, by classifying his 1985
convictions as generic burglaries that constituted violent felonies under the
ACCA’s enumerated clause.
We therefore grant the government’s motion and DISMISS the
appeal for lack of jurisdiction.
6